Buchanan and Geils v Lord Advocate
| Jurisdiction | Scotland |
| Judgment Date | 20 July 1882 |
| Docket Number | No. 177. |
| Date | 20 July 1882 |
| Court | Court of Session |
Lord Lee. B., Lord Mure, Lord Deas, Lord Shand, Lord President.
Property—River—Right to Foreshore of tidal navigable river—Barony title followed by possession.—
Prescription—Act 1617, cap. 12—Conveyancing (Scotland) Act, 1874, sec. 34.—
A proprietor, holding a barony title to lands on the banks of a tidal navigable river, with pertinents, disponed part of the lands and the shore-ground thereof. This disposition was not confirmed or otherwise recognised by the Crown. In an action brought by the disponee against the Crown for declarator that the foreshore belonged to him as a part and pertinent of his lands, it was proved that for upwards of forty years the pursuer and his predecessors had maintained continuous and exclusive possession of the fore-shore for pasture and other purposes, and that there had been no adverse possession by the Crown, although it was proved that members of the public had occasionally walked and shot over the foreshore, and had taken sand and reeds.
Held that the pursuer's title, taken in connection with the evidence of possession of the shore, warranted the Court in giving decree as asked.
Opinion per cur that the effect of the 34th section of the Conveyancing Act, 1874, was to substitute twenty for the forty years required by the Act 1617, cap. 12, for all the purposes of the latter Act, as interpreted by the decisions of the Court.
Andrew Buchanan of Auchentorlie, and John Edward Geils of Dum-buck, respectively, brought against the Lord Advocate, as representing the Board of Trade and the Commissioners of Woods and Forests, these two actions of declarator of right to foreshore ex adverso of their respective properties upon the banks of the Clyde below Bowling, in Old Kilpatrick parish, Dumbartonshire.
The two properties formed parts of the ancient barony of Colquhoun, which, in a charter of resignation in favour of Archibald Edmonstoun of Duntreath, dated July 26, 1732, was described as follows:—‘Totas Integras Terras et baroniam de Colquhoun, comprehenden terras de Mains, Miltoun, Midletoun, Overtoun, Nethertoun, Chapeltoun, Barnhill, Connelltoun, Dunerboak, Auchintorlie, Spittle, et Dunglass, eum maneriei loco de Dunglass molendino terris molendinariis multuris et ejusd sequelis piscationibus et lie zairs in fluvio de Clyde, cum omnibus aliis earundem pertinen cumq decimis rectoriis et vicariis totarum pr_dict terrarum molendini terrarum molendinariarum piscationum aliorumque predict.’
The lands belonging to Mr Buchanan were described as follows in the original feu-disposition granted in favour of Archibald Buchanan of Auchintorlie by Sir Charles Edmonstone on 14th November 1812:—‘All and Whole the farm and lands of Dunglass and Little Mill, Castle, and shore-ground thereof, with the whole houses situated thereon, bounded on the north by the other lands of the said Archibald Buchanan, on the south by the Clyde, on the east by a feu of the estate of Auchintorlie;…together also with my right not only to the fishings in Clyde opposite to the said lands now feued, but also my right to the fishings opposite to the lands of the said Archibald Buchanan, to the west between the lands now feued out and my lands of Dumbuck and Milton, possessed by James Brock.’
Mr Buchanan, the pursuer, was in right of the lands of Dunglass and Little Mill under an instrument of sasine dated in 1834, and the lands of Chapelton under an instrument of sasine dated in 1838, in which the above descriptions were repeated.
In a renunciation of lease of Dunglass in favour of Archibald Buchanan, dated May and June 1828, there was this description of the lands:—‘All and Whole that piece of ground at Dunglass, including the ground within the grounds of the old castle, and the rock itself upon which the said old castle stands, together with the ground going under the name of the shore-grass then last possessed by Robert Miller, tenant in Dunglass.’
The action at Mr Buchanan's instance concluded for declarator ‘that the ground forming the shores and banks of the river Clyde between high-water mark and low-water mark,—including the space between high-water mark and the longitudinal walls or dykes which have been erected along or near to certain parts of the deepened channel of the said river ex adverso of the farm and lands of Dunglass, and Little Mill and others, and of the lands of Chapelton and others, all lying in the parish of Old or Wester Kilpatrick and county of Dumbarton, belonging to the pursuer, belongs in property to the pursuer, and is part and portion, or part and pertinent, of Ms said lands, subject to our right as trustee for public uses.’
The pursuer founded (1) upon the fact that under the various Acts of Parliament from time to time passed in connection with the Clyde navigation, no right of property had been conferred upon the trustees thereby appointed; (2) upon exclusive possession for the prescriptive period of the foreshore as part and pertinent of Ms lands, and that by acts of every kind of which the subjects were capable.
These averments were denied by the defender.
The pursuer pleaded;—(1) The shores and banks libelled being the property of the pursuer by virtue of his titles, subject to the right of the Crown as trustee for public uses, the pursuer is entitled to decree in terms of the conclusions of the summons. (2) Separatim, the shores and banks libelled having been from time immemorial, or at least for the prescriptive period, possessed as their property by the pursuer and Ms predecessors under their said titles, he is entitled to decree, as concluded for.
The defender pleaded;—(2) The pursuer has no right, by virtue of his titles alone, to the property of the foreshores and banks claimed by him. (3) Separatim, the said foreshores and banks not having been possessed by the pursuer and his predecessors as their property for the prescriptive period, under and by virtue of their titles to the said lands, the pursuer has no right of property in them.
The Lord Ordinary (Lee) allowed a proof.
It was proved that the pursuer and his predecessors had by themselves, or by others acting under their authority, taken gravel, sand, and soil from the shores and banks for building and other purposes, and had sold them to others; that they had erected a fence on the shore below low-water mark; that they had pastured cattle on the sea-grass and other vegetation growing on the shores; that they had erected a pier on the land and levied dues from all persons using it; that they had hunted and shot over the shores and banks, and kept off trespassers; and further, that they had sold a part of the shore to a railway company, who had paid them therefor.
The lands of Dumbuck, belonging to Mr Geils, the pursuer in the second action, were to the west of the Milton Burn, which separated them from Dunglass and Chapelton, Mr Buchanan's property.
The original feu-charter of, inter alia, the estate of Dumbuck, so far as bearing on the present question, is quoted infra, in the opinion of Lord Mure.
The infeftments of the pursuer and of his father, in 1815 and 1845, were in similar terms. The latter bore:—‘All and whole the following parts and portions of the lands and barony of Colquhoun, viz., the lands of Milton of Colquhoun, now called Dumbuck, sometime including therein those parts thereof feued to two vassals at Milton and feu-duties payable for the same, Item, the lands called Easter, Upper and Lower Mains of Colquhoun, with houses, biggings, yards, whole pendicles and pertinents of the said several lands, and with the small island fishings and yares in the river Clyde, and all others belonging to the said lands, and with the teinds, parsonage and vicarage, of the same, mills, mill lands, fishings, and others,…which lands by the said trust-disposition are appointed to be thereafter called the barony or estate of Dumbuck.’
The conclusion of the summons at Mr Geil's instance in regard to his lands of Dumbuck was in similar terms to that in Mr Buchanan's, and the allegations and pleas set forth in support of it were also of a similar nature.
The defender stated the same defence as in the other case.
A proof was also led in this case, the import of which is sufficiently given in the opinions of the Lord Ordinary and the other Judges.
The Lord Ordinary, on 14th March 1882, pronounced an interlocutor in Mr Buchanan's case, finding ‘that the pursuer, in virtue of his titles to the lands libelled, and of the possession by him and his predecessors and authors under and in virtue of said titles, for upwards of forty years before the commencement of this action, and from time immemorial, is proprietor of the ground forming the shores and banks of the river Clyde, between high-water mark and low-water mark, ex adverso of their said lands; but subject always to any rights of navigation or other rights which the public may have over the same,’ and giving decree as craved.*
A similar interlocutor was pronounced in the action at Mr Geils' instance.*
Upon the facts his argument was directed to shew that the possession
attempted to be set up was (1) not as proprietor; (2) not exclusive; and (3) not for forty years. The insertion in a subordinate title of a boundary by
water, i.e., ‘by the Clyde,’ was no evidence of title.It might be evidence of an intention to claim a title, but that was all.The mere fact of the acquiescence
of the Crown in the erection of a pier did not prove an admission by the Grown of property in the ground for that purpose. In Baillie v. HayUNK1 the person who had built the pier had a right of property in the ferry. The reclamation of ground founded upon was done under statutory authority, and the Crown could not have interfered. There was thus a distinction between the circumstances here and those in Lord Blantyre'sUNK case,2 where the re-clamation had taken place at the proprietor's own hand, and had been of long...
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